Citation Nr: 1708339
Decision Date: 03/17/17 Archive Date: 04/03/17
DOCKET NO. 13-26 968 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines
THE ISSUE
Entitlement to service connection for a chronic respiratory disorder, including pneumonia and bronchial asthma with left lung granuloma.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of the United States
ATTORNEY FOR THE BOARD
J. Sandler, Associate Counsel
INTRODUCTION
The Veteran served on active duty from February 1954 to January 1956.
This appeal to the Board of Veterans' Appeals (Board/BVA) is from a September 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO).
In January 2015, the Veteran testified at a hearing at the RO before a Veterans Law Judge of the Board (Travel Board hearing).
The Board subsequently, in December 2015, denied the claim, and the Veteran appealed to the U. S. Court of Appeals for Veterans Claims (Court/CAVC).
In September 2016, the Veteran's representative at the Court and VA's Office of General Counsel, representing the Secretary, filed a Joint Motion asking the Court to vacate the Board's decision denying the claim and to remand the claim to the Board for further development and readjudication in compliance with directives specified (Joint Motion for Remand (JMR)). An October 2016 Court Order granted the JMR. The case since has been returned to the Board.
There are two other preliminary points also worth mentioning. In the December 2015 Board decision, the Veteran's claims for service connection for a spinal disability and arteriosclerotic heart disease were remanded for further development. He has not since been issued a supplemental statement of the case (SSOC) in regard to these other claims, but review of the record reveals that the RO is still undertaking that additional development action required for them. Therefore, it is unnecessary for the Board to take any further action with regard to those claims at this time.
Also, the Veterans Law Judge that presided over the Veteran's January 2015 Travel Board hearing since has retired. Consequently, in January 2017 the Veteran was sent a letter inquiring as to whether he wanted another hearing before a different Veterans Law Judge that would ultimately decide this appeal. It does not appear, however, that the Veteran responded to the January 2017 letter; thus, the Board is proceeding with its additional consideration of the appeal.
This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014).
Regrettably, the claim requires further development before being readjudicated, so the Board is remanding it to the Agency of Original Jurisdiction (AOJ).
REMAND
In granting the JMR, the Court determined that the Board had failed to provide an adequate statement of reasons and bases to support its December 2015 decision. When describing evidence of record, the Board stated that available private medical records were limited to Dr. B.V., treatment notes from 2012, and an October 2012 letter from Dr. N.O.V. However, in its later analysis the Board did not include the referenced records by Drs. B.V. and N.O.V. Review of the file shows such records are not present. A remand therefore is necessary for an attempt to obtain these records from Drs. B.V. and N.O.V., assuming they exist.
A VA Report of Contact dated in October 2006 indicates the Veteran had begun receiving Social Security Administration (SSA) payments. It is unclear from the record whether those payments were based upon age or disability. Nonetheless, because the SSA records are potentially relevant to the Board's determination, any available SSA Disability records should be obtained and considered. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010).
The Veteran underwent a VA examination for his respiratory disability in July 2012 with a September 2012 addendum. The VA examiner stated it is less likely as not that the Veteran's current respiratory findings of bronchial asthma and left lung granuloma were related to his episodes of pneumonia and bronchitis in service, and as a basis for her opinion provided that "[t]here is a paucity of evidence in literature showing the causal relationship between pneumonia and asthma, or pneumonia to asthma." After the December 2015 Board decision, the Veteran submitted additional evidence, namely an article from the Postgraduate Medical Journal explaining that mycoplasma pneumoniae, primarily recognized as a causative agent of community-acquired pneumonia, has recently been linked to asthma. He also submitted a medical article suggesting a link between spinal cord injuries and the eventual development of restrictive lung disease.
Where medical article or treatise evidence, standing alone, discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay opinion, a claimant may use such evidence to meet the requirement for a medical nexus. See Wallin v. West, 11 Vet. App. 509 (1998). However, an attempt to establish a medical nexus between service and a disease or injury solely by generic information in a medical journal or treatise "is too general and inclusive." Sacks v. West, 11 Vet. App. 314, 317 (1998) (holding that a medical article that contained a generic statement regarding a possible link between a service-incurred mouth blister and a present pemphigus vulgaris condition did not satisfy the nexus element). Still, medical treatise evidence can provide important support when combined with an opinion of a medical professional. Mattern v. West, 12 Vet. App. 222, 228 (1999). See also Rucker v. Brown, 10 Vet. App. 67, 73-74 (1997) (holding that evidence from scientific journal combined with doctor's statements was "adequate to meet the threshold test of plausibility"). As such, the Board finds it necessary for the Veteran to obtain a new VA examination where the VA examiner considers this newly-submitted evidence when providing his or her opinion.
Accordingly, the claim is REMANDED for the following additional development and consideration:
(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.)
1. Obtain, if possible, the records of all private evaluations and treatment the Veteran has received for his respiratory disability, including but not limited to 2012 records from Drs. B.V. and N.O.V. The Veteran should assist in this development by submitting releases so VA may obtain such private records identified.
If any private records identified are not received pursuant to the AOJ's request, the Veteran must be so notified and advised that it is ultimately his responsibility to ensure that any available private records are received. 38 C.F.R. § 3.159(c)(1) and (e)(1).
2. Request, directly from the SSA, complete copies of any determination on a claim for disability benefits from that agency, together with the medical records that served as the basis for any such determination. All attempts to fulfill this development should be documented in the claims file. If the search for these records is negative, that should be noted and the Veteran should be informed in writing. 38 C.F.R. § 3.159(c)(2) and (e)(1).
3. Thereafter, arrange for an appropriate VA examination of the Veteran to determine the nature and likely cause of his chronic respiratory disability. Based on a review of the record and examination of the Veteran, the examiner should provide an opinion responding to the following:
Please opine whether it is at least as likely as not (a 50 percent or better probability) that the Veteran's respiratory disability is related to his military service, to include especially consideration of (1) his extensive history of pneumonia while in service, (2) his history of being hit in the back with the butt of a rifle while in service and any impact such spinal injury may have on his lungs, and (3) his reports of suffering from pneumonia-like sicknesses yearly since separation from service.
The examiner must consider and address any medical articles submitted by the Veteran, including but not limited to: (1) the article about mycoplasma pneumoniae and its role in asthma and (2) the article suggesting a link between spinal cord injuries and the development of restrictive lung disease, both submitted in March 2016.
The examiner should include a complete rationale with all opinions, citing to supporting factual evidence and medical literature as appropriate.
4. Then readjudicate this claim in light of this and all other additional evidence. If the benefit sought remains denied, provide the Veteran an SSOC and afford him and his representative opportunity to respond to it before returning the file to the Board for further consideration of this claim.
The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2016).